Negotiating your Virginia Car Accident Case with State Farm

If you’ve been involved in a car accident in Virginia and are attempting to negotiate your personal injury settlement with State Farm, you may find that they are not the good neighbors that their jingles say they are. State Farm, in 2010, had the 34th largest revenue of Fortune 500 companies and is one of the largest insurers in Virginia.

In the insurance world, State Farm is infamous for being hit with a $145 million punitive damages verdict in Utah. The case, State Farm v. Campbell arose out of the company’s bad faith negotiation of a wrongful death case. Though State Farm’s driver, Campbell, only had a $50,000 liability policy, State Farm refused to negotiate the case. Campbell lost at trial and a verdict of just over $180,000 was rendered. Campbell later brought a case against State Farm alleging bad faith and fraud for not properly negotiating his case and simply offering his policy limits. A jury awarded him $145 million in punitive damages and the Supreme Court upheld the verdict. The Supreme Court, when reviewing the case, found that “State Farm repeatedly and deliberately decieved and cheated its customers,” by setting monthly caps for their insurance adjusters and individually rewarding those adjusters who paid less than market value for the claims.

How Does State Farm Evaluate Cases

Like just about every large insurance company, State Farm uses a computer program to assist their adjusters in evaluating your case. The computer program provides fairly rigid standards about how long you’re “allowed” to treat for certain injuries and cuts off medical bills for any treatment after that time period.

State Farm in Virginia

State Farm uses a “team approach” to handling your case. During the negotiation of your case, you may have one person that routinely makes calls to you, but your incoming calls can be handled by anyone on the team.

We have found that State Farm is more likely than most insurers in Virginia to claim that your medical expenses are “too high” and reduce the figures charged by your medical provider to what State Farm believes to be “reasonable and customary” for the area.

State Farm utilizes staff counsel in Virginia. This means that the defense attorneys who we work with on cases with State Farm are salaried employees and are not paid by the hour like outside defense counsel might be. This allows State Farm to allow more smaller cases to go to trial than an insurance company paying a defense trial attorney by the hour would be able to. State Farm’s offers, even after a lawsuit is filed, tend to support the idea that State Farm is not afraid to go to trial.

Ten Worst Insurance Companies in America (#1-5)

As Virginia personal injury attorneys, we deal with auto insurance companies all the time. We’ve got our share of horror stories about companies denying claims and making ridiculous low-ball offers. So does the American Association for Justice (AAJ), which recently posted it’s list of the ten worst insurance companies in America.

1. Topping the list is Allstate, who has made it clear that their goal is to earn profits and not to protect their insured’s. In fact, Allstate’s CEO Thomas Wilson is on record as having said “our obligation is to earn a return fo rour shareholders.” According to the AAJ survey, Allstate does this by offering it’s policyholders unjustifiably low settlement offers cranked out by their claim-evaluation software called Colossus. One former agent said that Allstate’s effort is to make the claims process “so expensive and so time consuming that lawyers would start refusing to help [Allstate] clients.”

2. Unum. Unum is one of the nation’s largest disability insurance companies. They have gained a reputation for unfairly denying and delaying the claims process. Unum has been constantly followed by federal and state regulatory officials and was even forced in 2005 to settle a battle with insurance commissioners from 48 different states over their claims-handling procedures. As a result, the company reopened more than 200,000 cases and paid $15 million.

3. AIG. Another large insurer, AIG has come under increased scrutiny for raising their prices during catastrophies. In 2006, AIG was forced to pay $1.6 billion to settle claims for a financial mess that commentators began to describe as “the new Enron.” In 2008, five of their executives were found guilty on criminal fraud charges.

4. State Farm. The “good neighbor” company made AAJ’s list. The largest property casualty insurer in America, State Farm has gone to great lengths to avoid paying claims. At the advice of McKinsey & Co., a large consulting group, State Farm has been known to use the “three D’s” of insurance claim handling: deny the claim, delay payment, and defend the lawsuit.

5. Conseco. This company sells long-term car policies. Their typical company is the elderly American. Conseco made the list because of their habit of using the deteriorating health of their insureds to their advantage. If they can deny claims for long enough, eventually the insured will pass away and so will the obligation to pay a claim. In May of 2008, Conseco settled claims brought by 39 states and the District of Columbia over the pattern of abuses for their long-term care insureds. As part of the settlement, the company paid $2.3 million in fines and returned $4 million in restitution to its policyholders.


Check out #6-#10 here!

Signs and Symptoms of a Herniated Disc

A herniated disc is a spinal injury which can occur in an auto accident.  The discs in your neck and back are like rubbery cushions that sit in between the vertebral bones of your spine.  Doctors often say that the discs are like little jelly donuts – they have a fibrous outside, but are soft on the inside.  When you have a back injury, the fibrous outside can break down and some of the material on the inside will leak out, just like when you squeeze a jelly donut.  When the material on the inside begins to leak out, the disc is said to have a herniation.

Some people will experience little or no pain with a herniation, while others will have a disc where the material irritates nearby nerves and can result in pain, numbness, or weakness into an arm or leg.


There are three key symptoms of a disc herniation:

  • Pain in your arms or legs.  A herniated disc in your back is likely to result in pain into your legs.  A herniated disc in your neck will result in pain in your arms.
  • Numbness or tingling.  Because of nerve irritation, you may have numbness or tingling in your hands or feet.  A neck herniation can impact the nerves of the hand and a lower back herniation can impact the nerves of the legs and feet.
  • Weakness.  Impact on the nerves will result in impact on the surrounding muscles and a herniation can also cause you to stumble or impair your ability to grasp and hold things in your arms.

If you have any of these symptoms after a car accident, you should see a doctor.  Your doctor can start to diagnose spinal injuries by checking your reflexes, muscle strength, walking ability, and ability to feel light touches or pinprick sensations.  If he is concerned about the results of this initial testing, he might order a CT scan or an MRI to get a better picture of your spine.


Treatment of a herniated disc takes many forms.  You may be prescribed over the counter medication, your pain may resolve during physical therapy, or you may be among people whose herniation does not resolve with conservative treatment and requires surgery.

A disc herniation is a permanent injury, meaning that if it goes untreated, it will not resolve on its own.  Unlike a muscle strain, this is not the sort of injury you can expect to get better with time.  If you have been injured in an auto accident and have the symptoms above, you should see a doctor as soon as possible.

Signs & Symptoms of a Concussion after a Car Accident

A concussion is a traumatic brain injury that can be caused in a car crash.  If not properly diagnosed, the effects of a concussion can be devastating.  But one of the problems is that a concussion is not easily diagnosed if you do not know what signs and symptoms to look out for.  If you have been injured in an auto accident and have any of the following signs, you need to be evaluated by a doctor as soon as possible:

  • Headache
  • Loss of consciousness
  • Confusion
  • Amnesia about the car accident itself
  • Dizziness
  • Ringing in your ears
  • Nausea
  • Vomiting
  • Slurred speech
  • Delayed response to questions
  • Fatigue

Other concussion symptoms may not manifest themselves for hours or even days after the car crash.  For example, you might not notice for several days that you are having difficulty sleeping or are more irritable until a few days after the crash.  For purposes of medical diagnosis, it is important to be evaluated by your doctor as soon as you recognize these symptoms.  Some signs of a concussion that might appear days after the car crash are:

  • Concentration and memory problems
  • Irritability
  • Personality changes
  • Sensitivity to light
  • Sensitivity to noise
  • Sleep disturbances
  • Taste disorders
  • Smell disorders

The Mayo Clinic recommends that if you or your child experience a head injury, you should see a doctor within a day or two, even if you have not received emergency care.  In an auto accident, you can sustained a blow to the head either from the steering wheel, the airbag, or from striking your head against the headrest or window.

You should seek emergency medical attention immediately if you experience:

  • Repeated vomiting
  • Loss of consciousness longer than 30 seconds
  • A headache that gets worse over time
  • Changes in physical coordination like stumbling or clumsiness
  • Confusion or disorientation

It is possible to sustain a concussion in a motor vehicle crash even if you do not strike your head on anything in the vehicle.  The sudden acceleration and deceleration forces involved in a whiplash-type injury will cause the brain to move around in the head and can cause bleeding in and around the brain or sheering of the brain’s axons.

Concussion Treatment

The most important thing you can do to recover from a concussion is to give your brain a rest. This means limiting activities that require thinking or mental concentration.  Often, your doctor will recommend that you stay out of work or school, limit TV and video games, don’t read or text or use a computer for several days.  As your symptoms resolves, your doctor may release you gradually back to full duties.  It is important to listen to your doctor’s advice with regard to returning to school, work, and exercise.

Winning Your Auto Accident Case in Virginia

For a plaintiff to win an auto accident case in the Commonwealth of Virginia, they have to establish four things:

  1. That the other driver owed her a duty;
  2. That the other driver breached the duty;
  3. That the Plaintiff was injured in the case;
  4. And that the Plaintiff’s injuries were directly caused by the breach of the duty.

What does all this mean in English?


Establishing the duty in the motor vehicle case is typically the easiest part. Each driver on the road owes all of other drivers several duties. We are obligated to operate our vehicles in a safe manner. We are obligated to maintain reasonable control over the vehicle. We are required not to drive too fast. We are prohibited from drinking and driving.

Breach of the Duty

Establishing that there was a breach of a duty in a Virginia motor vehicle case can be difficult sometimes. In rear-end cases, it is usually easy to show that the driver in the rear breached one of the duties – that she wasn’t paying full time and attention to the road, that she was looking at her cell phone, that she didn’t apply the brakes in time.

But in other cases, it can be more difficult. For instance, in an intersection accident, both drivers may say that the had the green light. It is incumbent upon the Plaintiff to find witnesses who agree that she had the green light. If the Plaintiff cannot produce independent witnesses who agree with her story, she will lose at trial nine times out of ten. This is why it is important to get a lawyer involved early on in your case – it gives the lawyer time to track down witnesses while their memories of the crash are still fresh.

Injuries & Causation

Most people who are injured in Virginia auto accidents think that this part will be easy. They think, “I was injured, I had to go to the doctor, he diagnosed me and treated me, what could be hard about this part?” But the insurance company might hire a doctor to testify on their behalf to say that you weren’t injured – either because the accident was too small or because you had some prior injury or degenerative condition. At trial, it will be up to a jury to determine whether to believe you and your doctors or whether to believe the insurance company’s doctor about the extent of the injuries.

Who pays my medical bills after a Virginia car crash?

One of the first questions that our clients have is “who should be paying my medical bills following a car crash.” Most people think it is unfair that their bills are being paid by their own health insurance, their own MedPay or by them themselves when the accident was caused by someone else’s negligence. Most people want to know why the other driver’s insurance company hasn’t taken responsibility for their injuries yet and isn’t paying for their medical bills as they come in.

The other driver’s auto insurance is the last entity that you want paying your medical bills. They will only do so in exchange for a release of future liability and will only be making a one-time payment. So, if you were to accept their offer to pay your medical bills (or your medical bills up to a certain dollar figure) during the first week or so after your accident, you may find yourself with very large outstanding bills at the end of the case.

Your primary health insurance company should be the first company receiving and paying the medical bills. Typically, the hospital or your doctor will take care of processing these payments. Of course, you are responsible for any co-pays.

If you do not have health insurance or your treating physician does not accept your health insurance, the second source of payment that you should look to is the MedPay provision on your Virginia auto insurance policy. MedPay is, essentially, a supplemental health insurance. It is an optional purchase with your auto policy and pays for medical bills as they come in and regardless of fault for the accident. You can also use MedPay in conjunction with your health insurance by submitting the receipts for the co-pays to your auto policy.

Finally, if you have neither MedPay nor health insurance, you are the one responsible for paying the bill upfront. Some doctors may defer collecting on this bill until your settlement by asking you to sign a lien for their services.

We understand that having medical bills pile up after an accident can be a stressful thing, but the last thing that you want to do is rush to a settlement before you make a full recovery or before you know the full extent of your injuries.

Who Pays my Lost Wages after an Auto Accident?

If you missed time from work following an auto accident in Virginia and either weren’t paid at all or had to use some of your vacation, sick leave or other paid time off as a result of the crash, you may be entitled to compensation for thoses losses. But you might be in for a bit of a wait for the insurance company to properly compensate you.

Do I have a Lost Wages Claim?

Under Virginia law, you are entitled to make a claim for lost wages in a personal injury case if you missed time from work and either did not get paid at all or had to use up some of your leave time. However, insurance companies will sometimes make the argument that because you “did not actually lose any money” and were able to use your sick leave to set-off the time that you spent attending physical therapy, doctors visits or recovering at home, you are not entitled to any money.

Though Virginia law is very clear on this (you are entitled to recovery), if you find yourself fighting with the insurance adjuster over this part of your claim, you might need to get an attorney involved. Remember that insurance adjusters are skilled, highly trained negotiators. They are under no obligation to treat you fairly and they will sometiems misrepresent the law (or, they might not actually know what the law in Virginia is).

What Documents do I Need to Make a Wage Loss Claim?

This can be another sticking point for insurance companies. The fact of the matter is that all you really need in a Virginia courtroom in order to get compensated for lost wages is to tell the Judge how much time you missed from work and what your hourly pay rate is. However, this does not stop insurance companies from requiring all sorts of documentation before they’ll consider your lost wage claim. We’ve seen cases where the insurance company has requested all of the following from an accident victim:

  • Paystubs,
  • Doctors notes requiring leave,
  • Supervisor’s note,
  • Previous tax returns, and
  • Time cards

The requirement that you overdocument your time off is not really a requirement at all. It’s a tactic by the insurance company to hold on to as much of their money as they can for as long as they can. During the five weeks it might take you to get all this documentation together, the insurance company is still earning interest on the money that you are entitled to.

Rarely do they require all of this documentation from a law firm that gets involved on the part of the injured victim. In some cases, where it’s not clear how many hours a week you worked regularly or what your regular rate of pay is, they might require more documentation than in other cases, but most of the time the insurance company is satisfied with paystubs showing that you used your sick leave. Just another example of insurance companies taking advantage of unrepresented people.

What Your Contingency Fee Buys You

Our personal injury attorneys work on a contingency fee basis. You’ve probably heard slogans like “no fee if no recovery,” or “we don’t get paid unless you get paid,” before. But what you may not know is everything that we do for our clients in order to earn that fee. Here’s a short list:

  • Educate and teach clients about personal injury claims.
  • Gather all written records and documents that support our client’s claim: including medical records, police reports and employment records.
  • Investigate the client’s claim by gathering witness statements, photos, diagrams and physical evidence.
  • Read and analyze our client’s auto policy to determine what kind of coverage is available to pay for hospital bills or provide for uninsured/underinsured motorist coverage.
  • Educate clients on how to improve their own auto policy’s coverage.
  • Meet with client’s doctors in order to fully understand client’s condition.
  • Obtain reports from experts that support the client’s claim.
  • Analyze all legal issues that might affect the case – like contributory negligence or assumption of the risk
  • Analyze cilent’s health insurance policy or government benefits to determine whether any money will be owed back to either entity at the end fo the case.
  • Negotiate any health insurance or government liens to maximize client recovery.
  • Conduct negotiates with the defense insurance company in an effort to settle the claim without the necessity of litigation or trial.
  • Prepare and file a Complaint if we are unable to settle the case.
  • Locate the Defendant so that service can be made upon him.
  • Prepare written Interrogatories and Requests for Production of Documents to be served on the Defendant (so that we can find out what his version of events is).
  • Answer the Interrogatories and Requests for Documents that the Defense sends us.
  • Prepare client for her deposition.
  • Conduct the depostion of the Defendant.
  • Prepare and take the deposition of any Defense doctors.
  • Review our own expert’s reports and meet with the expert to prepare his testimony for trial.
  • Interview any witnesses that we will call at trial.
  • File all necessary legal documents – including witness lists, jury instructions, and motions.
  • Try the case.
  • Analyze the verdict and research any issues that occured at trial for potential appeals.

What to do When the Insurance Adjuster Comes to Your House

It’s three days after your Virginia car crash and the insurance adjuster is calling to schedule an appointment to come to your house and write you a settlement check, how much money should you be asking for to settle your auto accident case?

It’s impossible to say. If you haven’t been hurt or you were checked out by a doctor and your injuries have resolved, a nominal amount might cover the inconvenience and small injury you sustained. On the other hand, if you are still injured or haven’t been to a doctor yet, it is very hard to tell what your case is worth.

Insurance companies use the high pressure tactic of coming to your house because they know that it makes you uncomfortable and that people who have been involved in car crashes and are beginning to incur medical bills are more likely to settle their case early on for a small amount of money if they can. So the insurance adjuster will come out and say something like “this is a minor crash and usually we’d only be able to offer you $250, but if you sign this document, I can pay your medical bills for the next 45 days up to $3,500.”

Let’s examine that offer to see whether it’s a fair deal.

Medical Bills in the Next 45 Days

The adjuster will tell you that “cases like yours” typically resolve within a certain amount of time. Or that, according to their doctors, soft tissue injuries or whiplash after a car crash should resolve in a certain number of weeks. They use that as justification to get you to sign a release limiting the amount that they have to pay for your medical bills.

What they don’t tell you is that every auto accident case is unique. Your injuries might not resolve within that amount of time. What if you need some treatment outside that window? What if you need a surgery outside that 45 day window? You would be in trouble if you signed the adjuster’s release.

Up to $3,500

Again, the insurance company is attempting to limit their exposure in your case by capping the amount that they’ll have to pay. How do you know whether your medical treatment will cost more or less than $3,500? Doctor visits, X-rays, and hospital fees can add up quickly.

Medical Bills Only

Did you miss the part of that release where they are only obligated to pay for your medical bills? This is contrary to Virginia law, which requires that they compensate you for medical bills, lost wages, and your pain, suffering and inconvenience after being hit by one of their drivers.

The Larger Picture

The message is that signing any release before your injuries have totally resolved is a bad idea. All you’re doing is limiting your ability to recover before you even know the full extent of your injuries. If you have already signed one of these releases, read this article on undoing your injury settlement immediately. There are very serious time limits that apply to your case if you have settled too early and are re-thinking the settlement.

If you find yourself with more questions, please contact us through the contact box on the right.

Virginia’s Poorly Written Cell Phone Ban

The Commonwealth of Virginia recently passed a ban on text messaging and emailing while driving. The first time a cop catches you emailing away on your Blackberry, its a $20 fine. After that, it’s $50 a pop. Plus court costs. A pretty weak deterrent when compared to Maryland’s $500 fine for first-time offenders.

But more importantly than that is how poorly written this law is. Here’s what the statute says:

§ 46.2-1078.1. Use of handheld personal communications devices in certain motor vehicles; exceptions; penalty. A. It shall be unlawful for any person to operate a moving motor vehicle on the highways in the Commonwealth while using any handheld personal communications device to: 1. Manually enter multiple letters or text in the device as a means of communicating with another person; or
2. Read any email or text message transmitted to the device or stored within the device, provided that this prohibition shall not apply to any name or number stored in the device nor to any caller identification information.
B. The provisions of this section shall not apply to:
1. The operator of any emergency vehicle;
2. An operator who is lawfully parked or stopped;
3. The use of factory-installed or aftermarket global positioning systems (GPS) or wireless communications devices used to transmit or receive data as part of a digital dispatch system; or
4. Any person using a handheld personal communications device to report an emergency.
C. No citation for a violation of this section shall be issued unless the officer issuing such citation has cause to stop or arrest the driver of such motor vehicle for the violation of some other provision of this Code or local ordinance relating to the operation, ownership, or maintenance of a motor vehicle or any criminal statute.
D. A violation of any provision of this section shall constitute a traffic infraction punishable, for a first offense, by a fine of $20 and, for a second or subsequent offense, by a fine of $50.

Let’s take a look at a few of the problems here:

First, the officer has to have some other reason to stop you. This isn’t all that hard to come up with – a parking pass hanging from your window, a burned out tail light, or a failure to use your signal can usually be sufficient. Still, if you’re doing everything right and texting, there’s not a thing the officer can do to you.

Second (and more importantly), the way the statute is written there are a whole slew of things you can still do on you Blackberry. Here’s a short list I came up with:

  • Write notes to myself;
  • Play chess;
  • Read the news;
  • Surf the web;
  • Take pictures of myself.

If you’re really cool and own an iPhone, you can only imagine how long that list would be.

Studies very clearly demonstrate that texting while driving is dangerous. Some studies suggest that it is just as deadly, if not more so, than drinking and driving. So let’s have our legislature step up and draft a clear law that bans doing anything with your cell phone while you’re operating a motor vehicle.


We only take on cases we believe in and think we can win. Let us win for you.

No matter what you are going through, we are here to help. Timing is critical, so contact us as soon as possible to tell us what happened.


Law Offices of David L. Marks
10513 Judicial Drive, Suite 204
Fairfax, VA 22030
703-385-1983 fax

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